Interview with the President of the Special Tribunal for Lebanon, Ivana Hrdličková: International criminal proceedings conducted by a hybrid tribunal

25.11.2018

When an international criminal tribunal in The Hague is mentioned, the majority of people think about the International Criminal Court. However, three other such courts are functioning in The Hague, one of them being the Special Tribunal for Lebanon. And as it applies national law, it is a very unique international tribunal. Why was it established? In what ways does it differ from the other tribunals? The answers are brought by its President, Judge Ivana Hrdličková.

Madame President, as she is called at the Special Tribunal for Lebanon, was a judge in the Czech Republic in both civil and criminal cases who, at the same time, focused her academic interests on Islamic law and human rights. She also served as an expert on the Council of Europe on money laundering and terrorist financing matters at the so-called Moneyval. She was appointed a judge at the Special Tribunal for Lebanon in 2012 and became its President in 2015. In February 2018 she was re-elected for a third term of eighteen months.

According to its statute, the Special Tribunal for Lebanon has jurisdiction over persons responsible for a particular terrorist attack that occurred in 2005 in Lebanon. In addition, it also has jurisdiction over persons responsible for attacks ‘connected’ to the main case. In the main case of Ayyash et al., four persons have been accused. As they are at large, their trial takes place in absentia. The Tribunal also identified three connected cases, and proceedings in two contempt cases have been heard.

A Tribunal to try a terrorist attack

Madame President, thank you very much that you accepted our invitation for the interview. To start with, could you please shortly explain the circumstances of the need to create the Tribunal here in The Hague?

First of all, thank you very much for the interest in the Special Tribunal for Lebanon (STL). I think the STL is special in many ways. On 14 February, 2005, there was a bomb attack in Beirut which killed the former Prime Minister Rafik Hariri and 21 other people. It also injured many others. Immediately after the attack, in March 2005, the United Nations Security Council sent a fact-finding mission to Beirut and later it established the UN International Independent Investigation Commission (UNIIIC) to assist Lebanon with the investigation of the attack.

In October 2005, the UNIIIC submitted a report to the UN Security Council and concluded that the attack had been carried out by a well-organized group with considerable resources and capabilities. At that time, unrest in Lebanon had not been calmed, and attacks continued. In a letter to the Secretary-General of December 2005, the Prime Minister of Lebanon requested the UN Security council to establish a criminal tribunal of an international character to try those responsible for the attack against the former Prime Minister and other attacks that were connected with the main case.

The Lebanese government and the United Nations entered into a discussion on how the tribunal should be established and they reached an agreement. However, the agreement, which was signed by the United Nations and the Government of Lebanon needed also to be ratified by the Lebanese parliament. However, this was not politically feasible due to the refusal of the Speaker of parliament to convene a session of parliament to formally ratify the agreement with the United Nations. In a further letter to the Secretary-General of the United Nations, the Prime Minister of Lebanon communicated that the Lebanese parliamentary majority had expressed its support for the Tribunal, and asked the Security Council to urgently help make the Special Tribunal for Lebanon a reality.

Is it therefore correct to say that the court was established by a Security Council resolution according the Chapter VII of the UN Charter?

Yes, it was the UN Security Council resolution 1757 of 2007. The Security Council considered that the terrorist attack of 14 February 2005 and its implications constituted a threat to international peace and security. That was the reason why the Security Council decided to use Chapter VII of the UN Charter to establish the Tribunal.

A real hybrid

The STL is one of the courts described as hybrid as it has elements of both national and international courts. Could you closer describe the national and international aspects of its functioning?

The international community used to say that the STL is a tribunal of many ‘firsts’. We are the first international tribunal dealing with the crime of terrorism which occurred in the time of peace. We are the first to have an independent Defence Office. Furthermore, we have an autonomous Pre-Trial Judge with unique powers, and our Statute and Rules of Procedure and Evidence (Rules) make allowance for the extensive participation of victims in our proceedings. So while ours is a hybrid tribunal, it is also structurally very unique.

In simplest terms, the domestic influence can be seen in our substantive law and the international aspect is our procedural framework. We apply the criminal law of Lebanon to the crimes within our jurisdiction and at the same time, the law of procedure is inspired by international criminal procedural law, although that too is at times informed by the Lebanese procedural law in accordance with our Rules. In addition, we are the only international tribunal allowed to try the accused in absentia, borrowing from a procedure that exists under the Lebanese criminal justice system.

If there is only one lesson learned from the STL, then I suggest it is about effective hybridization. There are three levels of hybridization at the STL. The first is on a human resources level between the national and international experts. We have 11 judges at the Tribunal out of which four are Lebanese. We have approximately 450 staff members at the Tribunal. The staff – consisting not only of lawyers, but also a host of technical experts and those with the skills necessary to help our Tribunal function both at our Headquarters in the Netherlands as well as in Beirut, Lebanon – come from some 75 different countries. Thus the level of interaction within an international staff and between international and Lebanese staff is high.

The second is hybridization between the national laws of Lebanon and international law. As I’ve mentioned, we apply the substantive criminal law of Lebanon, which comes from the Lebanese Criminal Code and relevant provisions of the Lebanese Code of Criminal Procedure. But the Rules which govern the proceedings and the admission of evidence before the Tribunal are international, having been drafted by the tribunal’s judges in plenary further to our Statute. While some facets are unique to the Tribunal, in fact, our Rules are heavily inspired by a combination of civil and common law principles which are not always easily reconcilable.

That suggests the third level – the hybridization between those legal traditions influenced by the common law and those that follow a civil law model. Reconciling this fusion of legal cultures influences more than just the interpretation of our Statute and Rules; it affects our entire approach to criminal justice. For this to work effectively, hybridization requires a commitment to the Tribunal’s unique normative framework and a willingness to explore principled approaches from various jurisdictions.

At the International Criminal Court (ICC), the interaction between civil and common law systems causes, or at least was in the past causing, considerable delays in the procedure because of the need to find a compromise. Do you face similar problems at the STL?

The combination of civil and common law principles is a hot topic in the international criminal law. It’s my view that the STL, ICC and other courts that combine these principles deal with a very similar challenge. Hybridization can at times slow down the process, but at the same time, to a certain extent, it is necessary. I believe that in order to harmonize the process it would be beneficial to foster agreement on general rules and principles of international criminal procedure that reflect a considered approach to combining the best elements of the civil and common law.

However, it is complicated for various reasons. Firstly, civil and common law are very different legal systems and at times we find divergent rules applicable in each system with competing purposes. Secondly, those tasked with interpreting the law have significant professional experiences shaped by these different legal cultures, and it is therefore natural that they tend to apply the law differently, reflecting their own understandings. But the problem, as I see it, can be the misunderstanding of the principles underlying different aspects of the criminal law process. If we take a role of a judge as an example; in reality judges themselves may have disparate views as to their role in the proceedings, simply because in the civil and common law systems the function of the judge can be very different.

How does the interaction between the Lebanese and international judges work? Are there any difficulties?

As I mentioned before, according to the Statute, there are four Lebanese judges and seven international judges. The Lebanese judges are extremely important for the understanding of the Lebanese law and procedure. At the same time, international judges are equally important for understanding the other legal principles. When I say seven international judges, it means really international because all the judges are coming from different countries and they represent a combination of civil and common law systems. Facilitating a meeting of the minds in this context can of course be challenging, but at the same time, it is enriching, because combining all the experiences brings a sense of true hybridization that respects both Lebanese legal tradition and the highest standards of international criminal justice.

How does a trial in absentia work?

One of the special features of the Tribunal is that it can try alleged perpetrators in absentia. When we look at the main case Ayyash et al., what does the trial without the presence of the accused look like?

Trial in absentia is definitely not the preferred option for any criminal proceedings, as it is always better to have the accused in the courtroom to personally face justice. In most of the civil law countries which includes Lebanon, France, and also the Czech Republic where I started my career, trials in absentia are, or historically have been, possible. The main purpose was to enable the judicial procedures – which in these systems is geared towards ascertaining the objective truth rather than simply the guilt or innocence of an accused in a purely adversarial context – to be commenced against accused persons whose presence could not be secured.

Our Statute sets strict pre-conditions to the conduct of in absentia proceedings, requiring a judicial decision with respect to each in absentia accused as to whether these pre-conditions are satisfied. The Statute also enshrines a number of safeguards, including rights to legal representation and to re-trial for an in absentia accused who is subsequently found. So in fact our in absentia proceedings look very much like adversarial proceedings in any other international courtroom with counsel for the respective parties presenting arguments before a panel of judges. Our proceedings even allow for interlocutory appeals to be filed by a defence counsel, with a view to ensure the equality of arms between prosecution and defence throughout the trial process. Moreover, in our case-law, the judges have looked to international human rights law and the jurisprudence of the European Court of Human Rights, in particular with regards to the requirements for trials in absentia. Therefore, it is not a procedure for conducting trial behind closed doors, or a process that provides inadequate legal protections for the individuals charged, as some people used to think about trials in absentia.

I believe that the international legal community decided to allow the STL trial in absentia not simply because such trials are permitted under the laws of Lebanon, but because the purpose of international criminal justice is not simply punitive with respect to the perpetrators of crimes, but also to bring justice to victims, to create historical records of what happened and to promote some kind of reconciliation into the affected societies through these processes. I think that these purposes are also very important in the broader fight against impunity, both in Lebanon and globally. The STL brings a message that there should be no impunity for such crimes like terrorism. In my view, this is why, even if they are not the preferable solution, trials in absentia are justified and far more preferable than no judicial process at all.

What is in fact the role of the defence?

The Tribunal has four organs – Chambers, Prosecution, Registry and the Defence Office. The Defence Office is principally charged with maintaining the list of defence counsel, protecting the right of the defence and providing support and assistance to the defence counsel and to any persons entitled to legal assistance. This includes, where appropriate the provision of legal research, the collection of evidence and advice and appearing before the Pre-Trial Judge or a Chamber. The Defence Office is also tasked with appointing the defence counsel to each accused, who act in the interests of the accused throughout the judicial proceedings, making oral submissions on their behalf in court, examining and cross-examining witnesses and preparing written filings.

In the in absentia context of the Ayyash et al. case, Defence lawyers cannot be in touch with the accused but they are still obliged to represent their interests. This is of course very challenging for them, especially for those coming from legal systems where in absentia proceedings are unfamiliar. However, when you follow the proceedings, it is evident that the Defence Counsel dedicated considerable time and effort to ensuring that the rights of the accused are heard and respected.

In case that the accused persons are arrested in the future, they can request a re-trial. In such a situation, the whole trial, including the witness testimonies, would need to be repeated?

One of the conditions for conducting a fair trial in absentia is that in case the accused appears during a particular stage of a trial, he or she can ask for a re-trial. But in fact, it does not automatically mean that everything should be repeated and re-litigated. It depends in which stage he or she would appear. Such an accused would have access to legal counsel and be at liberty to decide which approach is best suited for their interests. For example, an accused could accept the whole trial that has already taken place up to that point or just aspects of it. If an accused were to appear before the Trial Chamber renders a trial judgment, then he or she can decide what part of the trial needs to be repeated in a re-trial. If they were to appear after a conviction has been entered by the Trial Chamber, then he or she also has the right to appeal the decision. Even if they were to appear after the final judgment of the Appeals Chamber, then they are still entitled to re-trial on any aspect. Thus, the right to have the re-trial is there, but it does not necessarily mean that everything would start again automatically, or even that an accused would seek that result.

What is the main source of the prosecution evidence?

We are the first international tribunal dealing with large volumes of highly technical evidence based on telecommunications data. The Tribunal deals with large quantities of telecommunication data sourced by the communication service providers in Lebanon and provided to the UNIIIC, and subsequently, the Office of the Prosecutor. In other words, the main source of the prosecution evidence are the records of telephone-calls, messages and related data.

Just to give you an example of the scope of the evidence admitted before the Trial Chamber; testimony was presented by 300 witnesses and some 3000 exhibits have been admitted into evidence. The court hearings had over 85 thousand pages of transcript. Until now, the Trial Chamber issued already around 800 decisions in this process.

Does it mean that the bigger portion of the evidence comes from the records of the phone-calls and a smaller portion would consist of witness testimonies who testified about the event?

Yes, the main portion is technical evidence.

The main case, connected cases and contempt cases

What is the current phase of the main case Ayyash et al.?

The trial started on 16 January 2014 and the prosecution case was completed in February 2018. Only one of the four defence teams elected to call witnesses and present a case of its own, though the Trial Chamber has admitted various defence exhibits throughout the trial. Closing arguments of the Prosecution, Defence and Legal Representatives of Victims are scheduled for September 2018 and then the Trial Chamber will deliberate before handing down its judgment.

The speciality of the court is that it can also try individuals responsible for the so-called connected attacks. How many such attacks did the court identify?

The Pre-Trial Judge already confirmed three separate attacks as connected, in a decision issued in 2011. There may be more in the future, but any such investigations by the Prosecutor remain strictly confidential for now.

The court also decided about contempt cases. Could you closer explain what these cases were about?

The Tribunal has an inherent power to hold anybody to account who seeks to interfere with the administration of justice or attempts to obstruct justice. That is what is called ‘contempt’ within the Rules of the STL.

It is a little bit more complicated because the Statute does not expressly give the Tribunal the jurisdiction for these crimes, but the Tribunal decided at the beginning, through the drafting of its Rules that it, like the ad hoc international criminal tribunals that came before it, has an inherent power to protect its proceedings from those who seek to obstruct the justice.

The Tribunal has dealt with two cases. First, the case against Al Jadeed and Karma Al Khayat, which was concluded with the Appeals Panel decision reversing the conviction of Ms Khayat. The second case was against Al Akhbar and Ibrahim Mohamed Al Amin, and this case was concluded with the trial judge contempt decision. Both cases concerned media companies and their employees who were alleged to have published information about alleged confidential witnesses in contravention to judicial orders. Moreover, it is interesting that in these cases the Tribunal had to deal with the interpretation of the term ‘person’ and to decide if it has jurisdiction over legal persons. In both cases, the Tribunal decided that it did have such jurisdiction over legal persons for contempt crimes so as to be able to address knowing and wilful interferences with the administration of justice.

Too costly for the results?

The court faces a lot of critique that it is very costly, the proceedings are lengthy and the result seems to be uncertain and still far away. Do you agree with such critique?

The proceedings in international criminal justice are in general very costly and I think the Special Tribunal of Lebanon is not an exception. To run such a trial certainly takes more time than we would wish. There are several reasons for this. First, the motivation for trying crimes before an international court is generally because the domestic judiciary is either not able, or not willing to deal with the case effectively itself, and because international assistance is considered desirable and necessary to ensure justice is done. So we tend to see highly complex cases at the international level to begin with. Our case is highly technical and involves large volumes of very complex evidence, which is one of the reasons why we need quite a long time to conduct proceedings, thus adding to the cost of the process.

Second, when you bring together judges and lawyers from different legal systems to work within a novel legal system itself, it of course takes more time than when everyone involved in the judicial process is from the same country and legal system, applying a legal framework they are all familiar with.

In addition, working languages is obviously a challenge that can add time to the process. Factors such as the original language of the evidence or filings and then on the linguistic capabilities of judges, lawyers and other staff members can increase or reduce the amount of time required to process critical information.

In fact, all aspects of hybridization can create challenges that we expect domestic systems to be equipped to deal with. When I started with my function as the President three years ago, I decided to place priority in three areas: transparency, efficiency, and accountability of the Tribunal. I think that there are things you can change to promote a culture that better communicates the nature of the Tribunal’s work, that strives for that work to be carried out effectively and efficiently, and that values accountability to the Lebanese and international communities that the Tribunal ultimately serves. At the same time, we face structural challenges as a result of our Statute and the framework giving effect to the Tribunal, which are more difficult to address in retrospect. But, at least, all of it can potentially serve as a lesson learned for other tribunals.

How is the court being financed, internationally or nationally?

Out of the budget, 49 per cent is paid by Lebanon, and 51 per cent of the budget is paid by the voluntary contributions of many different countries who support our work.

I would also like to ask you about the 2011 judgment in which judge Antonio Cassese claimed that terrorism can be identified as a crime under customary international law. This opinion and judgment met with considerable critique from experts in academia. What are your views on this judgment? Did the Tribunal change its position, or does its view remain the same?

I was not a judge at the STL at that time, however I am a judge now, therefore I cannot publicly comment on the decision of the Appeals Chamber. The Tribunal did not change the view, but of course the issue may arise again. I know there are critiques, but there are also positive comments. This topic is very interesting.

With regard to the future, do you believe that other hybrid tribunals should be established? Is it a good way to deal with such crimes?

I think that the ICC is an excellent achievement for international criminal justice because it was really a necessity to have a permanent international criminal tribunal. However, because of the particular features of the Rome Statute you may have particular situations where the ICC will simply not be able to respond for lack of jurisdiction. For these specific cases, I think there will probably still be a role for hybrid tribunals.

If we look at the examples of hybrid international criminal tribunals; the STL is just one such model. Now, most recently, the Kosovo Specialist Chambers were established. I really hope that lessons learned will be taken from all the hybrid and ad hoc tribunals and applied as appropriate, in the future. Then, if there is a need to establish a new hybrid tribunal in the future, it will have the opportunity to be more efficient from the beginning of its operation having had a chance to learn lessons from past Tribunals.

Do you think it would be recommendable to extend the jurisdiction of the ICC for the crime of terrorism if it was defined?

To establish a tribunal or to extend its jurisdiction depends on a political will. I think that to agree on the definition of terrorism would be the first condition. Nevertheless, at this point it is very difficult to imagine reaching a general agreement on the definition of terrorism as an international crime. The question was different at the STL as we have jurisdiction over the crime of terrorism as it exists under domestic Lebanese law; the substantive law that we apply at the Tribunal.

From the Czech Republic to The Hague

I would also like to ask you a little bit more of a personal question. Could you share with us how your professional career led from the Czech Republic to the Hague?

It was really a long time ago when I started my judicial career in 1990. I was always interested in international law in general, in criminal law and in international judicial cooperation. When I was working as a judge, I had an opportunity to work on the European and international level on judicial cooperation. Later, I dealt with the issues at the Committee of the Council of Europe called Moneyval, which evaluates money laundering and terrorism financing issues. I would say all this interest in the judicial work and international judicial cooperation brought me from the Czech Republic to The Hague.

How do you feel living and working here in The Hague?

I feel happy here. And I am really grateful for the opportunity to actively participate in international criminal law. I truly believe that working towards accountability and fighting impunity is one of the ways to contribute to peace. Therefore I think that we have to continue working on improving international criminal justice.

Note

The interview was conducted by Jan Lhotský. It is up-to-date as of August 2018.

Photograph

President of the Special Tribunal for Lebanon Ivana Hrdličková, source: Special Tribunal for Lebanon